SK (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Lloyd,Lord Justice Stanley Burnton |
| Judgment Date | 19 June 2012 |
| Neutral Citation | [2012] EWCA Civ 807 |
| Docket Number | Case No: C5/2010/2998 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2012 |
[2012] EWCA Civ 807
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
MR JUSTICE OUSELEY
AA/08206/2008
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Lloyd
and
Lord Justice Stanley Burnton
Case No: C5/2010/2998
Mr Richard Hermer QC and Ms Alison Pickup (instructed by Messrs Howe & Co) for the Appellant
Mr Charles Bourne (instructed by Treasury Solicitor) for the Respondent
Hearing dates: Wednesday 18 th April 2012
Thursday 19 th April 2012
This appeal raises the narrow but important issue of the content of the international crime of "other inhumane acts" under article 7(1)(k) of the Rome Statute 1. It arises because the appellant, SK, has been excluded from the protection of the Refugee Convention 2, pursuant to its article 1F(a), by reason of the findings of the Upper Tribunal in its determination dated 6 August 2010 (Ouseley J and SIJ Eshun).
The issue is narrow, in the context of this litigation, because there is no appeal, even if there could be, on any findings of fact; nor any issue as to whether SK may be said (the article 1F test is that "there are serious reasons for considering…") to be allegedly (and indeed, admittedly) responsible for serious acts of brutal injury in her home country of Zimbabwe. But it is argued on her behalf, as appellant in this court, that even so her acts do not amount to the international crime of "other inhumane acts" under the Rome Statute, because, on the true interpretation of that statute, the facts found against her by the Upper Tribunal cannot, for the purposes of the article 1F(a) test, amount to that crime, which is submitted to be of still greater seriousness.
The issue is important because we are asked to consider what the scope of that crime is. We have been assisted by plenteous citation of jurisprudence from the International Criminal Court (the "ICC") and the international tribunals for the Former Yugoslavia and Rwanda, as well as by references to scholarly treatises.
I will refer further to the provisions of the Rome Statute and its ancillary Elements of Crimes below. For the present we highlight the essential clause by reference to which SK has been excluded, to be found in article 7(1)(k):
"1. For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
…
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."
The requirement of the context of a widespread or systematic attack on civilian population, of which the individual concerned has knowledge, is known as the chapeau requirement, for it takes its place at the head of the definitions of the listed acts, and applies to each of them. There is no issue in the present appeal but that the chapeau requirement has been met in this case.
What this appeal is about is rather the two requirements of sub-paragraph (k) itself: (i) "of a similar character", and (ii) "causing great suffering, or serious injury…". On behalf of SK, Mr Richard Hermer QC has submitted that, on the findings of the Upper Tribunal, neither of these constituents of the crime of "other inhumane acts" can, as a matter of law, be said here to have been fulfilled. In essence, Mr Hermer submits that "of a similar character" imports above all the need for the acts under sub-paragraph (k) to be of the same gravity as the other listed acts in article 7(1), that both requirements (i) and (ii) must be viewed from that perspective, and that, serious as SK's responsibility may be, it does not amount and cannot be viewed as amounting to the fulfilment of those requirements. As he, and his junior, Ms Alison Pickup, write in their supplementary skeleton: "It is no part of the Appellant's case to belittle her culpability for the crimes that she committed. As she herself acknowledges, they were undoubtedly serious criminal acts which plainly infringed the human rights of the victims. The Appellant's case is however that they cannot properly be defined as crimes against humanity, a class that stands apart as the most serious crimes of concern to the international community as a whole. Any court, domestic or international, should be astute to ensure that the crime is interpreted strictly and reserved only for cases of the utmost gravity not least to avoid diluting and demeaning the power of the charge of a crime against humanity."
Article 1F of the Refugee Convention
Article 1F contains an exclusion, as follows:
"F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
We are concerned here with the exclusion in article 1F(a).
Although SK has succeeded to some extent in her litigation with the respondent Secretary of State, in that it has been accepted that she would face a real risk of being subject to serious ill-treatment if she were returned to Zimbabwe, sufficient to breach her rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), she has so far failed to achieve the status of a refugee under the Refugee Convention. Therefore her appeal against the decision of the Secretary of State to remove her succeeded on human rights grounds, but failed on refugee status grounds. We bear in mind the importance and value of that status (see for instance the UNHCR Guidelines on International Protection at paras 8/9).
The standard of proof under article 1F is "serious reasons for considering". This is what Lord Brown of Eaton-under-Heywood JSC said about that standard in Regina (JS (Sri Lanka)) v. Secretary of State for the Home Department [2010] UKSC 15, [2011] 1 AC 184 (where war crimes under article 1F(a) were under consideration):
"[39]…Clearly the tribunal in Gurung's case [2003] Imm AR 115 (at the end of para 109) was right to highlight "the lower standard of proof applicable in exclusion clause cases" – lower than that applicable in actual war crime trials. That said "serious reasons for considering" obviously imports a higher test for exclusion than would, say, an expression like "reasonable grounds for suspecting". "Considering" approximates rather to "believing" than to "suspecting". I am inclined to agree with what Sedley LJ said in Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624, para 33:
"[the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.""
The UNHCR Guidelines at para 35 state this:
"35. In order to satisfy the standard of proof under Article 1F, clear and credible evidence is required. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met. Confessions and testimony of witnesses, for example, may suffice if they are reliable."
In the present case, as will become clear, the evidence is largely based on SK's own evidence. Moreover, the issue on appeal is essentially one of law, not of fact.
The findings of the Asylum and Immigration Tribunal
SK's appeal from the decision of the Secretary of State to remove her as an illegal entrant came first before IJ Buchanan in the Asylum and Immigration Tribunal (AIT). His determination was dated 4 February 2009.
SK is a citizen of Zimbabwe, now 31 years old. She arrived in the United Kingdom on 23 October 2002 and asked for asylum on 1 May 2008. She was interviewed in connection with her claim on 21 May 2008. For the purposes of her appeal to the AIT she relied inter alia on her own witness statements and on an expert report on Zimbabwe by Dr Steve Kibble. She admitted wrongdoing, as a member of the Zanu PF youth militia, in connection with inter alia two farm invasions, in April and October 2002, but said that she had been the victim of duress.
She had certainly suffered misfortune in her life. When she was five, her parents were killed in a traffic accident. She had gone to live with her maternal grandparents, but they were killed in a fire started by a lightning strike. She then went to live with her maternal uncle. In 1999 she married, but her husband died of poisoning caused by home-made alcohol, so she returned to her uncle's house. He was an ardent supporter of Zanu PF. In November 2001 he prevailed on her to join the Zanu PF youth militia to campaign for the party. The socialising required of that militia involved alcohol, cannabis and sex. She was sent to nearby villages to force people to attend Zanu PF meetings and rallies.
However, the Secretary of State's case that she should be excluded from the Refugee Convention was ultimately based in particular on the two farm invasions I have mentioned, about which her evidence was as follows (as set out in IJ Buchanan's...
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Table of Cases
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